Lawyer under Art. 226.1 of the Criminal Code of the Russian Federation Smuggling of potent, poisonous, poisonous, explosive substances and weapons

Quite an extensive article. 226.1 of the Criminal Code of the Russian Federation establishes criminal liability for the illegal movement across the border of the customs union or the State border of the Russian Federation (smuggling) of potent, poisonous, poisonous, explosive, radioactive substances, radiation sources, nuclear materials, firearms or their main parts, explosive devices, ammunition, weapons mass destruction, means of its delivery, other weapons, other military equipment, as well as materials and equipment that can be used in the creation of weapons of mass destruction, means of delivery, other weapons, other military equipment, as well as strategically important goods and resources or cultural valuables or especially valuable wild animals and aquatic biological resources.

It would seem that this provision of criminal law exists to suppress extremely serious crimes, but in practice everything is much more prosaic. Recently, more and more often for smuggling under Art. 226.1 of the Criminal Code of the Russian Federation, athletes who use hormonal drugs to achieve sports results are subject to criminal liability. Decree of the Government of the Russian Federation of December 29, 2007 N 964 “On approval of lists of potent and toxic substances for the purposes of Article 234 and other articles of the Criminal Code of the Russian Federation, as well as large quantities of potent substances for the purposes of Article 234 of the Criminal Code of the Russian Federation” defines a list of prohibited potent substances substances, including steroids, including various testosterone esters (sustanon, propionate, enanthate, etc.), methandrostenolone, nandrolone, trenbolone, stanozolol, oxandrolone, masteron, oxymetholone, trenbolone, boldenone - for illegal trafficking of these steroid hormonal drugs criminal liability. This list is also applicable for the purposes of Art. 226.1 of the Criminal Code of the Russian Federation, that is, for moving steroids across the state border, no matter how, criminal liability for smuggling is provided.

How everything happens in practice. Most often, an athlete who wants to purchase steroids for his own consumption orders illegal drugs by mail via the Internet. The fundamental point here is where, in what country the seller is located and whether steroids will be sent from abroad to the territory of the Russian Federation. Quite a lot of sellers of steroid hormones are located in other neighboring countries, such as Belarus, Moldova, and Ukraine. The fact is that currently on the territory of these states, steroids are not prohibited and are sold as ordinary drugs, although they are potent, but there is no criminal liability for the trafficking of them. After ordering and payment by the buyer, the seller sends potent drugs from the territory of another state by mail to the buyer in Russia. As part of operational search operations, a parcel with steroids is tracked already on the territory of the Russian Federation and the recipient is detained at the post office upon receipt as a smuggler.

It is noteworthy that for the distribution of steroids on the territory of the Russian Federation, without moving through the state. border, only the distributor (seller) is subject to criminal liability. In this case, Art. 234 of the Criminal Code of the Russian Federation Illegal trafficking of potent or toxic substances for the purpose of sale, that is, a buyer of steroids for personal consumption who does not have a sales goal is not subject to criminal liability.

As for the smuggling of other potent substances, which include, for example, various potent drugs used for recreational purposes to obtain a narcotic (intoxicating) effect, such as tramal, tramadol, phenobarbital, diazepam, as well as poisonous and toxic substances, and especially explosives and weapons, then within the framework of Art.
226.1 of the Criminal Code of the Russian Federation will have completely different specifics than when smuggling steroids. CRIMINAL LAWYER call now: ☎ 8 (495) 532-75-40

What is smuggling?

In the Russian Federation, the law establishes the procedure for moving movable property across the border. Violation of this order entails criminal liability. The severity of the penalty depends on what is being smuggled. This can be any movable property, as well as:

• cash, bills, checks, securities;
• jewelry;
• narcotic drugs and psychotropic substances, the circulation of which is prohibited or limited in Russia;
• alcohol and tobacco products;
• items that constitute the cultural heritage of Russia and other states;
• weapons, explosives, military equipment;
• commodities of strategic value.

A crime can be committed in a variety of ways. The most common ones include:

• movement outside customs control zones;
• using false documents;
• with concealment from customs control (for example, using hiding places in a car, suitcase, or heels);
• false declaration;
• diplomatic cargo;
• using unmanned drones;
• using animals;
• using small ships, boats, homemade submarines.

A crime is always committed with direct intent, self-interest is the main motive. The subject of a criminal act is a person who has reached the age of 16 years.

Responsibility for smuggling

Until 2011, punishment for the illegal movement of movable property across the border was established in Article 188 of the Criminal Code of the Russian Federation. In 2011, commodity smuggling was decriminalized. Article 16.1 was introduced into the Code of Administrative Offenses of the Russian Federation, providing for liability for the illegal movement of goods and vehicles of international transport across the border, and the Criminal Code was supplemented with 4 new articles providing for liability for smuggling of drugs, money, alcohol and tobacco products, as well as items representing cultural heritage, weapons, strategically important resources and objects.

Let's look at each of the above articles separately.

Smuggling of weapons, military equipment, explosives, toxic substances, cultural values, objects of strategic importance, as well as especially valuable animals and aquatic biological resources is punishable under Art. 226.1 of the Criminal Code of the Russian Federation – imprisonment from 3 to 7 years. An additional penalty may be imposed - a fine of up to 1 million rubles. with restriction of freedom for up to 1 year.

Parts 2 and 3 of this article provide for qualifying offenses – committing a crime with the use of violence against a customs officer or using one’s official position. Committing this criminal act is punishable by imprisonment for a period of 5 to 10 years with a fine of up to 1 million rubles. and restriction of freedom for up to 1.5 years or without additional punishment.

The most serious punishment is imposed when smuggling is committed by an organized group. In this case, members of an organized criminal group serve sentences in prison from 7 to 12 years. Additionally, they may be subject to a fine of up to 1 million rubles. and restrictions of freedom for up to 2 years.

Note!

A complete list of strategically important goods and resources is contained in Decree of the Government of the Russian Federation dated September 13, 2012 No. 923.

Clause “b”, part 2, art. 226.1 of the Criminal Code of the Russian Federation

According to paragraph “b” of Part 2 of Art. 226.1 of the Criminal Code of the Russian Federation qualifies the commission of smuggling associated with any physical influence (for example, striking, tying) on ​​a person exercising customs or border control in order to force him not to interfere with the illegal movement of items across the customs border.

Violence consisting of beatings, committing other violent acts, intentionally causing minor or moderate harm to health, as well as serious harm to health in the absence of the signs provided for in Part 3 or 4 of Art. 111 of the Criminal Code of the Russian Federation, covered by paragraph “b” of Part 2 of Art. 226.1 of the Criminal Code does not require additional qualifications under articles providing for liability against life and health.

If serious harm to health is intentionally caused under the circumstances specified in Part 3 or 4 of Art. 111 of the Criminal Code of the Russian Federation, the act is qualified according to the totality of crimes provided for in paragraph “b” of Part 2 of Art. 226.1 of the Criminal Code of the Russian Federation and the corresponding part of Art. 111 of the Criminal Code of the Russian Federation.

Smuggling of funds and instruments

Responsibility for the illegal movement of money and monetary instruments (bills, checks, securities) across the border is established in Article 200.1 of the Criminal Code of the Russian Federation.

A large amount is an amount that exceeds 2 times the amount allowed for export without declaration, and an especially large amount is 5 times the amount allowed. The crime is considered completed from the moment the deadline for filing the customs declaration expires.

The perpetrator of the crime is subject to a fine ranging from 3 to 10 times the amount that was moved illegally across the border or forced labor for up to 2 years or restriction of freedom for the same period.

Part 2 of this article provides for qualifying offenses - smuggling of funds on an especially large scale and by a group of persons. When passing a sentence under Part 2 of Article 200.1 of the Criminal Code of the Russian Federation, the court sentences the guilty person to pay a fine in the amount of 10 to 15 times the amount that the guilty person tried to smuggle. As an additional punishment, the judge may impose forced labor or restriction of freedom for up to 4 years.

Note!

A person is exempt from criminal liability if he voluntarily handed over the money and his actions do not show signs of another crime. The transfer of funds is not recognized as voluntary during investigative actions, when applying forms of customs control, as well as during the detention process.

Objective characteristics of cigarette smuggling

Smuggling is assessed as the redirection across state borders of material assets, any goods, prohibited items and all kinds of substances with any violations of the legislation established in the customs sphere. Illegal transportation of prohibited items is qualified in accordance with Article 188 of the Code of the Russian Federation. Due to the state's participation in the customs union, new borders have emerged.

The corpus delicti at the time the crime is committed is considered formal, therefore the crime will be considered committed and completed immediately at the moment the prohibited goods cross state borders. The following may be considered as aggravating features of the crime:

1. Committing violations of customs regulations on an especially large scale;
2. Presence of a preliminary conspiracy to illegally transport cigarettes and alcohol;
3. Committing a crime by an organized group with prior conspiracy.

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The objects of crimes related to the illegal transportation of goods are economic interests, social and financial relations, and the comprehensive integrity of the Customs Union. The subject at the time of committing a crime is any person who has reached legal age. The attacker in this situation must have direct personal intent, as well as a strong desire to bring unlawful acts to their logical conclusion.

Smuggling of alcohol and tobacco products

Criminal liability arises in the event of illegal movement of alcohol and tobacco across the border in large quantities, that is, if their value exceeds 250 thousand rubles.

Note!

The calculation excludes the cost of goods, within which you can freely transport alcohol and tobacco products without declaration.

For a crime under Part 1 of Article 200.2 of the Criminal Code of the Russian Federation, the perpetrator will be punished with a fine in the amount of 300 thousand to 1 million rubles. or forced labor for up to 5 years. The most serious punishment is 5 years in prison.

If a crime was committed by a group of persons by prior conspiracy, or the criminal is a person who used his official position to commit an unlawful act, then these will be the qualifying elements (Part 2 of Article 200.2 of the Criminal Code of the Russian Federation) for which the court imposes a more serious punishment - imprisonment from 3 to 7 years. An additional penalty may be a fine of up to 1 million rubles. or in the amount of the salary of the convicted person for up to 5 years.

The greatest danger to society is smuggling of alcohol and tobacco committed by an organized group. Therefore, the perpetrators will face imprisonment from 7 to 12 years. As an additional punishment, the court may impose a fine of up to 2 million rubles. or restriction of freedom for up to 2 years.

Smuggling of narcotic drugs, psychotropic substances, their analogues and precursors

Responsibility for drug smuggling is provided for in Article 229.1 of the Criminal Code of the Russian Federation. For illegal movement of narcotic drugs across the border, the perpetrator faces a penalty of imprisonment from 3 to 7 years with a fine of up to 1 million rubles. and restriction of freedom for up to 1 year or without.

Part 2 of this article contains the qualifying elements - drug smuggling committed:

• by a group of persons by prior conspiracy;
• using official position;
• to a significant extent.

As punishment, the offender is sent to prison for a term of 5 to 10 years with an additional penalty in the form of a fine of up to 1 million rubles. and restrictions of freedom up to 1.5 years or without.

More serious punishment is faced for illegal movement of drugs across the border on a large scale. Upon sentencing, the perpetrator is sentenced to imprisonment from 10 to 20 years with or without a fine and restriction of freedom for up to 2 years.

The greatest danger is smuggling drugs on an especially large scale and using violence against customs officers, therefore, for committing a crime, the court sends the accused to a correctional facility for a term of 15 to 20 years with or without a fine and restriction of freedom.

Note!

Significant, large and especially large amounts of narcotic and psychotropic substances are approved by the Government.

A complete list of narcotic and psychotropic substances, the circulation of which is prohibited on the territory of our country, is contained in Decree of the Government of the Russian Federation dated October 1, 2012 No. 1002

The article is devoted to the practical consequences (with examples from the author’s legal practice) of the decriminalization of “commodity smuggling”, the excessive breadth of wording and the presence of blanket norms in Art. 226.1 of the Criminal Code of the Russian Federation. It is concluded that it is necessary to improve the legislative regulation of liability for smuggling of a number of items.

Despite the seemingly constant modernization of customs legislation, bringing it into compliance with international agreements, including supranational standards of the WTO and the EAEU, as well as the constant improvement of customs technologies and optimization of procedures, participants in foreign economic activity, unfortunately, still have many problems. A significant part of them is associated not only with local law enforcement during the transition period of customs administration from “paper” to “digital” records management, but also with systemic “mines” embedded in Russian federal legislation, which establishes legal liability for violations of customs rules, including criminal - for smuggling.

Decriminalization of “commodity smuggling”

Previously, smuggling as the illegal movement of goods across the customs border of Russia was qualified under Art. 188 of the Criminal Code of the Russian Federation. In this case, the starting point for initiating a criminal case was a violation of the established procedure for customs clearance and customs control (or their complete absence) with the high cost of goods transported across the border.

However, in accordance with Federal Law No. 420-FZ of December 7, 2011, so-called commodity smuggling is decriminalized, Art. 188 of the Criminal Code of the Russian Federation has lost force.

That is, commodity smuggling ceased to be criminal from the moment the specified Federal Law came into force. As a result, all acts in the form of non-declaration or false declaration of no matter how large consignments of goods, not related to non-payment of customs duties on a large scale, it would seem, should be assessed only in the context of an administrative offense and qualified, in particular, under Art. 16.2 Code of Administrative Offenses of the Russian Federation. And the movement across the state border of Russia and/or the customs of the EAEU, relatively speaking, of “particularly dangerous objects” (potent substances, poisons, explosives, weapons, nuclear materials, etc.), strategically important resources and goods should be punished under Art. 226.1 of the Criminal Code of the Russian Federation. Naturally, it was expected that the list of strategically important resources and goods would include goods whose export abroad is critical for the country’s economy (for example, timber or oil).

What happened in the end?

Excessive breadth of wording and the presence of blanket norms in Art. 226.1 of the Criminal Code of the Russian Federation

So, the Criminal Code of the Russian Federation provides for liability for committing an act provided for in Art. 226.1 “Smuggling of potent, poisonous, poisonous, explosive, radioactive substances, radiation sources, nuclear materials, firearms or their main parts, explosive devices, ammunition, weapons of mass destruction, means of delivery, other weapons, other military equipment, as well as materials and equipment that can be used in the creation of weapons of mass destruction, means of their delivery, other weapons, other military equipment, as well as strategically important goods and resources or cultural values ​​or especially valuable wild animals and aquatic biological resources" (as amended by the Federal Law dated July 2, 2013 No. 150-FZ).

The specified crime, according to the degree of public danger, is classified by law as crimes against public safety (Chapter 24), included in section. IX “Crimes against public safety and public order” of the Criminal Code of the Russian Federation, and thus, in fact, is equated to other criminal acts included in Chapter. 24 of the specified section, including: Art. 205 “Terrorist act”, art. 206 “Hostage-taking”, Art. 209 “Banditism”, etc.

At the same time, as follows from the disposition of the norm of Art. 226.1 of the Criminal Code of the Russian Federation, this criminal offense is largely economically oriented towards criminal activity, if we take into account the objects of encroachment specified in the disposition of the norm - goods, resources, animals.

It should be noted that the criminal offenses of the repealed Art. 188 of the Criminal Code of the Russian Federation, previously classified by law as crimes exclusively in the economic sphere, have de facto been revived in the current version of Part 1 of Art. 226.1 of the Criminal Code of the Russian Federation, classified, as noted earlier, as crimes against public order. At the same time, in essence, economic acts become a crime of a greater degree of public danger than was previously the case.

Thus, the “inarticulateness” and excessive breadth of the wording of Art. 226.1 of the Criminal Code of the Russian Federation has created real preconditions for arbitrary interpretation of this norm when applying it, which, unfortunately, already leads to negative consequences for participants in foreign economic activity.

As follows from the instructions contained in the disposition of the norm of Art. 226.1 of the Criminal Code of the Russian Federation and notes to it, the norms of this article are not direct in their effect (directly stated), but are of a blanket (referential) nature, i.e. they establish rules of behavior only in a general form, without specifying them. In this regard, specification of the missing legal requirements of Art. 226.1 of the Criminal Code of the Russian Federation is contained in special regulations of various branches of legislation of the Russian Federation, including by-laws (decrees of the Government of the Russian Federation, etc.).

Due to the blanket structure of the disposition of Art. 226.1 of the Criminal Code of the Russian Federation revealed problems with its application, since this norm refers to a huge volume of special norms that define the concepts mentioned in the article in order to establish the signs and specific characteristics of the objects of encroachment listed in it.

This creates real conditions for an arbitrary, broad interpretation of this norm by the law enforcer (unfortunately, based on my personal experience as a lawyer, currently the systemic interpretation of legal norms in practice is usually carried out by the detective), which can lead (and already in many cases leads) to unjustified, from the point of view of legal expediency, bringing participants in foreign economic activity to criminal liability. For example, the content in the disposition of Art. 226.1 of the Criminal Code of the Russian Federation of the concepts of “other weapons, other military equipment, as well as materials and equipment that can be used in the creation of weapons of mass destruction, their delivery vehicles, other weapons, and other military equipment” allows for the possibility of classifying a wide variety of goods as these concepts - in in particular, materials, spare parts and components for general (civil) use.

According to the judge of the Constitutional Court of the Russian Federation S. M. Kazantsev, set out in the ruling of the Constitutional Court of the Russian Federation dated October 10, 2019 No. 2647-O: “Establishment in part one of Article 226.1 of the Criminal Code of the Russian Federation of criminal liability for illegal movement across the customs border of the Customs Union in within the EurAsEC or the State border of the Russian Federation with the member states of the Customs Union within the EurAsEC “other military equipment”, due to the lack of clear and consistent criteria (signs) for classifying military products into this category, due to the unclear separation of military and dual-use products, does not seem to meet the requirement formal certainty, without which a uniform understanding and application of the relevant norms cannot be achieved, and therefore compliance with the general principles of legal regulation and law enforcement, and equality of all before the law. Thus, there is uncertainty in the question of whether the contested provisions of Article 226.1 of the Criminal Code of the Russian Federation comply with the Constitution of the Russian Federation.”

In connection with the above, in order to clarify the current norm of Art. 226.1 of the Criminal Code of the Russian Federation and eliminating the possibility of its arbitrary interpretation, it seems advisable to introduce amendments to the Criminal Code of the Russian Federation in the form of clarifying the rules of disposition of this article, as well as dividing the compositions in the Criminal Code of the Russian Federation by allocating separate compositions for certain concepts (types) of goods moved across the customs border (for example, a separate a norm for certain types of strategically important goods and resources, a separate norm for cultural values, etc.), which will not contain blanket norms, for example, referring to lists approved by the Government of the Russian Federation. Thus, the provisions in this part of the Criminal Code of the Russian Federation will have a direct effect.

The stated problem, to my great regret, is not isolated and not far-fetched, and its solution is extremely relevant in the context of statistics given on the official website of the Federal Customs Service of Russia, from which it follows that out of 652 criminal cases initiated in the first quarter of 2020 by Russian customs authorities , – 280 initiated under Art. 226.1 of the Criminal Code of the Russian Federation. Meanwhile, it should be borne in mind that in accordance with the Code of Criminal Procedure of the Russian Federation, a preliminary investigation can also be carried out by investigators of the body that revealed these crimes.

In other words, this means that in practice, criminal cases under this article are initiated not only by customs authorities, but also by the Ministry of Internal Affairs, the FSB and the Investigative Committee of the Russian Federation. Thus, apparently, 280 cases is, of course, not the final “figure” for the first quarter of 2022.

Examples from personal practice

I will give just a couple of examples from my legal practice.

So, the first incident. An individual is going to fly abroad through Sheremetyevo Airport. On his wrist is a used watch, but from one of the most prestigious Swiss brands, in a white gold case and with a strap that also contains inserts of precious metals. He purchased the watch relatively long ago in one of the specialized stores in Moscow. When passing through customs control in the “green corridor”, this watch and its strap are confiscated from him, and a criminal case is initiated against him under Part 1 of Art. 226.1 of the Criminal Code of the Russian Federation, since goods such as gold watches (EAES HS code 9101) and straps with precious metal inserts (EAES HS code 9113 10) are included in the List of strategically important goods and resources for the purposes of Article 226.1 of the Criminal Code of the Russian Federation, approved by Decree of the Government of the Russian Federation of September 13, 2012 No. 923 (as amended on June 7, 2022).

As a result, this individual is under a real risk of being brought to criminal liability, although even the day before he could not have imagined that for several years he had been wearing strategically important goods for the Russian Federation on his hand - namely, a Swiss gold watch and a strap for it. Moreover, for such a “serious” criminal offense he faces imprisonment for a term of three to seven years with a fine in the amount of up to one million rubles or in the amount of wages or other income of the convicted person for a period of up to five years or without it and with restriction of freedom for up to one year or without it.

Or here is another illustrative case.

A Russian legal entity purchases finished fish products (smoked eel) from China. When importing into Russia, customs, on controversial grounds, adjusts the customs value of the goods towards its increase, in connection with this, charges additional customs duties in the amount of approximately 800,000 rubles, and then brings this organization to administrative responsibility under Part 2 of Art. 16.2 of the Code of Administrative Offenses of the Russian Federation and imposes a minimum administrative fine under this article - in the amount of ½ of the allegedly unpaid customs duties, which in this case amounted to “only” about 400,000 rubles, but without confiscation of the goods (I am talking about confiscation here only because that the legislator also foresaw this, but left it (by the way, as well as the actual amount of the fine from ½ to 2 times) at the discretion of the law enforcement officer, dependent, for the most part, on the degree of his own generosity, limited by the need to replenish the federal budget). But that is not all. Based on the signs of illegal import of a strategic product into the territory of Russia (let me remind you, Chinese smoked eel), a report of a crime under Part 1 of Art. 226.1 of the Criminal Code of the Russian Federation, since such goods, namely finished products from fish or crustaceans, mollusks or other aquatic invertebrates (EAEU HS codes 1604–1605) are also included in the same already mentioned List of strategically important goods and resources.

Based on the examples given, it seems that not all acts related to the illegal movement across the customs border of the EAEU or the State border of the Russian Federation of the items of encroachment listed in Part 1 of Art. 226.1 of the Criminal Code of the Russian Federation, pose a threat to public order and state security. It is also obvious that the norms of Part 1 of Art. 226.1 of the Criminal Code of the Russian Federation in the current version requires changes taking into account the level of public danger of the act provided for in this article, depending on the objects of the offense.

On the need to improve legislative regulation

In connection with the above, it would be extremely timely in Chap. 24 of the Criminal Code of the Russian Federation “Crimes against public safety” section. IX “Crimes against public safety and public order” title of Art. 226.1 and the norm of Part 1 of Art. 226.1 shall be stated in a new wording, excluding from the current wording the objects of encroachment that have a pronounced economic orientation or do not have a real social danger. And this is completely justified from the point of view of proportionality, since, you see, the sanctions in the Code of Administrative Offenses of the Russian Federation in cases of violation of customs rules are such that not every criminal liability can be compared with them (I gave an example of this above).

At the same time, taking into account the need to protect the economic interests of the state, it would also be advisable to maintain legal liability in accordance with the Criminal Code of the Russian Federation in cases of illegal movement across the customs border of the EAEU or the State border of the Russian Federation of other items contained in the current norm of Part 1 of Art. 226.1 of the Criminal Code of the Russian Federation, namely, truly strategically important goods and resources or cultural values ​​on a large scale or especially valuable wild animals and aquatic biological resources belonging to species listed in the Red Book of the Russian Federation and (or) protected by international treaties of the Russian Federation, their parts and derivatives (derivatives) - which, nevertheless, must be separated into separate articles of the Criminal Code of the Russian Federation.

Moreover, these new articles of the Criminal Code of the Russian Federation must be formulated without the use of such legal structures as blanket norms, and directly contain a detailed list of such goods, as well as an indication not of just “movement across the border”, but of the direction of such movement (import or export) in relation to each product or group of products.

Thus, the proposed new provisions in this part of the Criminal Code of the Russian Federation will not only have a direct effect, but also comply with the principles of detailing, systematization and codification of legal norms.
In addition, the practical implementation of such changes in criminal legislation is consistent with the idea of ​​​​the need to ensure the principles of justice, humanity, proportionality and economy of measures of criminal repression. Kurochkin Konstantin